Summary of recommendations
- All prisoners should have the right to vote on the same basis as other citizens.
- All prisoners should have the right to send and to receive uncensored correspondence.
- Prisoners should have humanized visiting rights (see specific recommendations on pages 20, 21 of the report).
- Prisoners should have the right to make unmonitored telephone calls. (Subject to the limitations on telephone communications in the privacy provisions of the Criminal Code. The police may tap telephone communications with judicial permission.)
- Prisoners should have access to the media, and the media should have access to the prisons. Inevitably there will be limitations, practical ones, that infringe on these rights, but the internal administration of a prison is publicly accountable. Public accountability should be the guide to keeping these rights active.
- The information presently available to prisoners is inadequate. Prisoners should have the right to more information (better libraries including up-to-date legal information and current periodicals).
- Prisoners should have the right to receive written notice of rules and regulations that define offences against prison discipline. These rights are to be statutory rights.
- Prison rules and regulations should be written with specificity and clarity so that prisoners know exactly what constitutes an offence. The wording of a rule must not be so wide as to create a “catch-all” offence.
- Prisoners have the right to receive written notice of charges laid against them for breaches of prison discipline.
- Prisoners should have the right to be heard by an impartial third party when breaches of discipline have been alleged. They should have the right to independent representation, to present a full case, hear evidence against them, cross examine and call witnesses.
- Prisoners should not be punished twice for the same offence. (For example, a prisoner may currently be punished for a breach of discipline and also under the Criminal Code.)
- Solitary confinement as it presently exists should be abolished. When temporary segregation of a prisoner is deemed necessary the recommendations later in this report should be applied.
- (a) Prisoners should have the right to a hearing before an independent tribunal, before an impending transfer. The procedures followed should be comparable to those recommended in #10.
(b) Initial classification should be subject to appeal by prisoners. Such an appeal should be heard by a committee chaired by a person not answerable to the corrections authority.
- Prisoners should have the right to independent medical examinations and advice.
- Psychiatric treatment and counselling should be made available within the prison to those prisoners requesting such treatment.
- Any prisoner who wishes to refuse psychiatric or other medical treatment should have the right to refuse such treatment, as would any ordinary citizen. Under no circumstances should medical or psychiatric experimentation take place inside a prison.
- An effective grievance procedure must be implemented in prisons. Third-party participation independent from the prison system should be encouraged in the resolution of complaints.
- The parole system must be reviewed to ensure fairness. In all cases, prisoners should be given the right to a hearing, should be furnished with the relevant information possessed by the parole board, and should be provided with legal counsel.
The following brief suggests changes that we feel should be instituted immediately in the Canadian prison system so that the civil liberties of prisoners will be more adequately protected. We have purposely left the consideration of many of the broader issues surrounding the sorts of fundamental changes that may be required in the prison system to a later paper where we will have a better opportunity to more fully explore and recommend alternatives to the existing system.
In our view, to allow the present system to continue to deny civil liberties without proper due process safeguards compounds the destructive nature of our prisons. Part of the reason they are widely understood to be “schools of crime” is that we, through our elected government, have permitted prison staff, administrators, and policy-makers, in the name of punishment, to become isolated and accountable only to themselves, rather than to the community as a whole.
Over the past 40 years, government reports on the subject of prison reform have often recommended drastic and immediate reforms to deal with the problems we have addressed here.1 The lofty aspiration in these reports have, however, remained largely paper dreams. Much of the hope that remains for prison reform lies within public interest groups that actively pursue a legislative “watch-dog” function. It is our hope that future joint and individual activities by such groups will bring about meaningful changes to the present prison system in the areas that we have discussed here, and in those areas not directly considered by this brief, but which are also in need of reform.
The aim and purpose of this paper is to state the BCCLA position in regard to the civil liberties which prisoners should have. In doing so, it is hoped that public awareness in this area will be enhanced.
We are inclined to the view that for a small but significant proportion of our population, imprisonment is not a deterrent to the commission of crimes. These persons are frequently found as prisoners in our correctional system and we hope in the near future to propose constructive methods of responding to many of their illegal acts without the unfortunate recourse to imprisonment. Meanwhile we offer these comments on the existing penal system with a hope of identifying and encouraging improvement with regard to many of its characteristics that offend our civil liberties in the worst ways.
When we refer to civil liberties we mean those fundamental rights of each and every citizen which are to be protected under our democratic government, such as: the right to freedom of speech and association, freedom of religion, equality before the law, the right to be free from cruel punishment and arbitrary detention, and the right to personal security. These civil rights are set out in the Bill of Rightsare not without their limits. There are defined boundaries beyond which no individual can claim a “right” to these liberties, but any restriction should be explicit in legislation. There must be some valid public interest which outweighs the right to civil liberty. Thus, as we discuss the civil rights which are taken away from a prisoner the fundamental question throughout this paper will be:
To what extent are prisoners deprived of civil rights normally accorded to each and every Canadian citizen and to what extent is any infringement justifiable according to existing legislation?
The penal system regulates every aspect of the life of a prisoner, and the recommendations in this report therefore cover a wide range of subjects. However, all of them relate to fundamental premises that we believe must govern the nature of the penal system.
One of the most fundamental premises is that the penal system should take account of the need to re-integrate prisoners into the community. The vast majority of prisoners will eventually be released. There is much disagreement about whether prisons can serve a rehabilitative function, but at the very least, we should attempt to eliminate or minimize aspects of prison life that discourage of hinder rehabilitation and eventual re-integration into the community. Therefore, our proposals are designed to further the following objectives:
- Factors that tend to sever a prisoner’s ties with the community, particularly with his or her family, should be eliminated except to the extent that they can be shown to be necessary for the safety or security of the institution. Obviously, imprisonment involves some degree of isolation from the community, but even within a prison system, it is possible to take steps to encourage an inmate to maintain contacts in the community that will be beneficial.
- It is self-evident that practices that promote disrespect for authority hinder successful re-integration into the community. Therefore, the principles of fairness and of natural justice must apply to prisoners as they do to other citizens. We cannot expect prisoners to decide to conform to a system that, as applied to them, operates in an arbitrary and unjust manner. Central to our system of natural justice is the principle that disputes should be judged by an independent and impartial tribunal.
- Practices that constitute cruel (whether or not unusual) punishment or that degrade or humiliate prisoners should be eliminated. Most such practices hinder re-integration into the community and their elimination can be justified on utilitarian grounds. In addition, however, we believe that the elimination of cruelty and degradation is a worthy aim in itself.
- Ordinary citizens as well as prisoners have a legitimate interest in the prison system. In a democratic society, it is essential that citizens have access to information about prisons. At present, such information is often unavailable, and public ignorance of prison conditions has fostered abuses within the system.
Historically, civil disability of the prisoner can be traced back to ancient Greece where it was called “infamy”. There, one who had broken the law was prohibited from voting, making speeches, and serving in the army. It was reasoned that the depriving prisoners of their civil liberties would serve as both a retributive measure and a deterrent to further crime through social degradation. The practice expanded with the Roman Empire to Anglo-Saxon England’s “civil death” (civiliter mortus) or attainder and was continued on the basis of the same rationale of retribution and deterrence. “Civil death” implies the prisoner forfeits, permanently, civil and property rights. The concept of civil death was abolished in Canada in 1892. Beginning with the humanitarian movement of the late 18th century, an alternative philosophy of re-integrating the prisoner into lawful society developed. Although the old rationale of civil death as a viable deterrent is no longer legally acceptable, remnants of the concept linger on today.
In a 1973 brief on the federal corrections system, the Ministry of the Solicitor-General stated the following policy against remnants of civil death:
At the time, restrictions are placed on the freedom of the offender only to the extent that is necessary for the control in the protection of society, that assists in the corrections and re-integration process and that is crucial to the administration and security of the institution …the punishment of the offender is the deprivation of his liberty. There is no legal authority for further restrictions or punishment for the crime for which he was convicted.2
Gaps exist between the attitudes set forth in this statement and the real civil rights retained by prisoners today. Punishments imposed upon prisoners are frequently more than confinement. A prisoner usually enters the prison as part of the “general” population, which affords certain liberties, but the Director or Independent Chairperson either under the disciplinary board powers or under the administrative dissociation powers, has the authority and power to reduce those liberties by the imposition of solitary confinement or other penalties. Many penalties cannot be justified as being necessary for the “security of the institution”, nor are they beneficial to any re-integration process. The Solicitor-General’s brief recognizes that the basic dilemma of the prisoners upon release is how to cope in a normal environment as a direct result of the difference in the restrictions that exist within and beyond confinement, plus the deliberate removal of decision-making rights while incarcerated.
During the past 40 years a variety of penitentiary briefs and reports have been prepared by law professors, royal commissions, provincial governments, and recently by a Parliament sub-committee. While each has recognized the unjustifiable denial of prisoner civil liberties, legislative change during those 40 years has been minuscule. Furthermore, it appears that the most recent report has not produced any substantial change but will require greater awareness and pressure for any meaningful results.
At common-law, prisoners, like all Canadian citizens, retain the right to conduct legal proceedings, such as the right to conclude contracts or the right to sue for torts committed against them. Although prisoners legally retain these rights, their ability to act on them is severely hampered by the prison reality. The ability of prisoners to communicate with their lawyers is an example. All mail between them is subject to censorship, while telephone conversations are subject to monitoring and are limited by the discretionary powers of guards. Lawyers must spend excessive time travelling to prisons to spend time with their prisoner-clients, often having difficulty arranging schedules for adequate visits, in order to achieve solicitor-client confidentiality. Thus, in reality, the prisoner’s legal capacity is often dramatically reduced.
Prisons in British Columbia are governed by either federal or provincial law. The provincial prison system, in general, houses those individuals who have been sentenced to incarceration up to two years less a day, as well as those who are being held on remand (sometimes for as long as one year); while the federal institutions incarcerate those who have been sentenced to two years or more. Two sources of regulations govern provincial prisons. They are the Corrections Act and the Gaol Rules and Regulations. The federal penitentiaries are governed by three sources of rules. They are the Penitentiary Act; the Penitentiary Service Regulations, which are made pursuant to the Penitentiary Act; and the Commissioner’s Directives which are made pursuant to the Penitentiary Service Regulations. In addition there are Divisional Instructions, Institutional Standing Orders and Institutional Routine Orders which confer no benefits, remedies or rights on prisoners if the staff fail to comply with them. The legislation and regulations delegate wide decision-making power to prison officials without procedural safeguards.
The abrogation of prisoners’ civil rights therefore may result from express legislation which denies them certain rights (for example, the right to vote), but the determining factor behind such abrogation is the wide discretionary power delegated to the prison administration and the corresponding lack of procedural safeguards to protect prisoners from arbitrary discretion. Up until the time of incarceration, the criminal justice system is supposed to provide the non-prisoner citizen with myriad procedural safeguards. Such safeguards in the system end upon imprisonment with the result that:
There is a great deal of irony in the fact that imprisonment, the ultimate product of our system of criminal justice, itself epitomizes injustice.3
In recent years the United States courts in some instances have displayed a more active role in protecting the prisoner’s civil rights within such delegated legislative authority. The Canadian courts have been unwilling to do the same. Although the Canadian Bill of Rights was passed in 1960 with the intention that it should be used by the courts to protect any civil rights infringed by federal law, it has been cited only once in the area of prison conditions and never implemented. In most cases the courts have avoided applying the Canadian Bill of Rights be declaring the issue of prisoner civil liberties to be one of internal prison administration and therefore not within the competent jurisdiction of the courts.4
Until 1979 the Canadian courts refused to accept jurisdiction to review prison decision except in very limited circumstances. Although the Supreme Court has now ruled that prison disciplinary decisions may be reviewed where they fail to meet minimum standards of fairness, the evidence so far under the new rules for review does not suggest any real change in the readiness of the courts to redress the problem of injustice behind prison walls.
One reason given for the courts’ attitude is that they do not have adequate expertise or knowledge to interfere with the prison system, but frequently they require such expertise for any other issues before them. The Bill of Rights has not been recognized by the courts as a legal instrument. In a 1975 case the courts cited the Canadian Bill of Rights and issued a declaration that solitary confinement in the B.C. Penitentiary was cruel and unusual, and contrary to the protections of the Bill of Rights. However, despite that declaration the conditions in solitary confinement in the B.C. Penitentiary remained essentially the same. The courts refused to enforce effectively any measures to back up their decision. If the courts refuse to deal with these problems of prisoners’ civil rights and the legislators do nothing to effect change, the unrest in our prisons is likely to continue.
While some civil rights are denied prisoners, others may be granted unequally. Of any two prisoners having received equal sentences, one may experience additional punishment through an unequal loss of civil rights. Prisoners may experience their incarceration differently because of their age, race, religion, sex or political affiliation. For example, prisoners with radical political affiliations have difficulty obtaining literature and forming political groups. (This has occurred with respect to Amnesty International, civil liberties groups, and The Scottish National Party.) The denial of civil liberties in this fashion is unjustifiable, arbitrary and discriminatory.
An example of a legal disqualification to which prisoners are subject during their prison term is the loss of the right to vote. We feel that such a disqualification is an anachronism and cannot be justified today.
One proposal that has been supported by prisoner rights advocates in recent years is the abolishment of legislation which disenfranchises prisoners.5 In federal elections, prisoners in British Columbia lose their right to vote by virtue of the Canada Elections Act which provides that6:
The following persons are not qualified to vote at an election… every person undergoing punishment as an inmate in any penal institution for the commission of any offence.
In provincial elections, not all prisoners in British Columbia are disentitled from voting. The Provincial Elections Act disenfranchises7:
…every person convicted of treason or any indictable offence, unless he has secured a free or conditional pardon for the offence or has undergone the sentence imposed for that offence.
However, it must be noted that “indictable offences” encompass a large portion of the prison population.
Two main criticisms may be directed against the present situation. First, prisoners who are entitled to vote in provincial or federal elections (i.e., remand prisoners or, in the case of provincial elections, prisoners convicted of summary offences) are not able to do so because polling booths are denied them in the prisons except in rare occasions such as in 1975 in Oakalla. Furthermore, the present law is discriminatory in its application. For example, it appears that where individuals are on probation or parole they are able to vote in both federal and provincial elections.8 Thus, the situation exists that where two individuals have committed the same crime, one may be sentenced to prison and consequently lose the right to vote, while the other may be on probation and retain the right to vote.
The second argument against the present law is that it is an anachronism. The historical reason for disenfranchisement appears to be that only those who lived up to a certain moral and legal standard should retain the right to vote. Thus, revocation of the right to vote was punishment for transgressing society’s standards. This additional punitive measure is invalid in light of the present day purpose and aims of penology.
The right to vote is a basic and important right in our democratic society. We feel that there exists no valid government interest which can justify disenfranchisement. If one of the aims of penology is to re-integrate the prisoner into lawful society, then disenfranchisement appears inconsistent with that goal. The removal of the prisoner’s right to vote does nothing to further the goal of protecting society. The argument that politicians would be unduly responsive to the criminal element in the few constituencies in which prisons exist is not persuasive. A prison population would not comprise a majority any more than the occupants of an average apartment complex, and in any event this argument ignores the vulnerability of politicians to pressures from other special interest groups in the community.
There would be definite benefits in giving prisoners the right to vote. First, the shroud of secrecy which surrounds our prisons and protects the arbitrary abrogation of civil rights from public criticism would be significantly reduced as prison issues would become part of a political debate. Secondly, the prisoners would have the opportunity to exchange ideas with and voice their complaints to responsive politicians. Thirdly, the vital component of accountability would be available. Fourthly, allowing the vote would help to dispel the public image that prisoners are untrustworthy whereas many are and continue to be responsible citizens in other areas of their lives.
If Canadians are worried about the practicalities of allowing the prisoner the right to vote, they could look to the example of other countries. Citizens of Finland, Sweden, Norway and Denmark do not lose their right to vote upon being sentenced to prison. In Norway, judges have the discretionary power to impose disenfranchisement as part of the punishment they hand down, but this may be done only in the case of specified offences relating to the security and safety of the country.9
In the United States there have been court cases involving the right to prisoners, who are not disenfranchised in that country, to vote. The United States Supreme Court has ruled that the state must provide a method of voting because not to do so denies prisoners “equal protection of the law” guaranteed by their Constitution.10 The issue of whether prisoners should be denied the right to vote at all, has not come before the Canadian or U.S. courts.
The B.C. Civil Liberties Association calls for a change in present federal and provincial laws to provide the right to vote for all prisoners. Furthermore, the laws should include provisions for proper administrative machinery to enforce that right.
Any unjustifiable restriction on a prisoner’s ability to communicate with the outside world is another way in which the present correctional system arbitrarily imposes punishment in addition to punishment by confinement. Communication with the outside world, and consequently freedom of speech and association and the right to privacy, is unjustifiably restricted in many ways: monitoring of mail, visitors and telephone conversations, and limiting access to information and the media. The result is, in effect, reduced access of the public to the prison.
Prisoners have the right to public scrutiny of the prisons for the same reason that the accused has a right to a public trial: to prevent the arbitrary infringement of civil rights.
The practice of mail censorship is extensively used within both the federal and provincial institutions in British Columbia. The federal Penitentiary Service Regulations and the provincial Gaol Rules and Regulations delegate a wide discretionary censorship authority to prison officials.11
In a study commissioned by the American Bar Association, the censorship of mail sent by a prisoner and mail sent to him, was attacked on two grounds12:
(1) Restriction of mail renders the prison a secret society, in which arbitrary powers may be exercised without check.
(2) Invasion of private thoughts, both of the inmate and his correspondent, has a debilitating effect on both persons, hinders “rehabilitation” and affronts the natural dignity of all involved.
Prison administrations justify censorship on two grounds: institutional security and prisoners’ rehabilitation. Neither is a valid argument. First, with regard to institutional security, it may be necessary to check letters for contraband, but it is not necessary to read the letters in order to achieve this purpose. Prison administrators have rationalized that reading the letters prevents any outside facilitation of escape plans or the planning of further crime. However, in those U.S. prisons where censorship has been abolished there has been no apparent increase in security violations.13 Secondly, contact with the outside world is an obvious aid to re-integration into free society. Censorship not only thwarts this goal, but also likely serves to aggravate rather than enhance an attitude of responsibility and self-worth in the prisoner. Censorship is a paternalistic practice which is in direct opposition to every citizen’s fundamental right to freedom of speech and to privacy.
It appears that just one case regarding mail censorship has been before a Canadian court. In the Federal Court of Canada case of Solosky v. The Queen14, the issue was censorship of mail between a prisoner and his solicitor. Such mail is normally censored in federal institutions. Justice Addy ruled that the institutional head did have the statutory legal right to censor such correspondence. As has occurred in other prisoner’s rights cases, he declined to declare the statutory authority void on grounds that it abrogated the rights guaranteed by the Canadian Bill of Rights. Rather, Justice Addy reasoned that the Canadian Bill of Rights does not create new rights and therefore, because the prisoner never had the right to uncensored mail, the Canadian Bill of Rights could not create that right for him now.
The Solosky case concluded by stating that a prisoner’s mail to and from his solicitor is protected by the common-law right to privileged correspondence with a solicitor, where the object is to seek or give legal advice. However, “…whether the letter does in fact contain a privileged communication cannot be determined until it has been opened and read.” Although this may be true, it does not follow that the correspondence should be censored by a prison official. The right to privileged correspondence with a solicitor can be safeguarded only by an impartial third party deciding what is and is not privileged correspondence. One U.S. court has held that outgoing mail to attorneys cannot be opened or delayed while incoming mail from the same parties can be opened (but not read) to check for contraband, but only in the presence of an inmate.
Other U.S. courts have gone further and ruled against censorship of all correspondence to and from prisoners, on the basis that the right to communicate with the outside world and the right of those outside to communicate with the prisoner is encompassed by the first amendment to their Constitution (freedom of religion, speech, press and assembly).15 The same ruling has also been made on the basis of a liberal reading of the fourth amendment (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…”).16 And similarly, many state legislatures have abolished statutory provisions which provide for the censorship of prison mail.17
On the basis of the preceding discussion of the censorship of mail sent and received by prisoners, the BCCLA calls for immediate legislative change abolishing censorship except in those situations in which the security of the institution is clearly jeopardized. In the alternative, statutory provisions should require that any necessary opening of mail to check for contraband or censorship, in special cases, be conducted by an impartial third party.
Visiting rights obviously serve the personal needs of prisoners who are cut off from family and friends. But they also promote successful re-integration of the prisoner into the community and thus serve an important aim of the penal system. Both critics of the penal system and those in charge of it agree that the incentive to abandon criminal activity is much more likely to come from the prisoner’s family or from others in the outside community than it is from any influence within the prison. Also, visits with lawyers are necessary if prisoners’ legitimate legal rights are to be protected and the principles of natural justice implemented. Clearly, unnecessarily isolating a prisoner from the community is counterproductive to all concerns. Visits should be viewed as fulfilling an important objective of the institution, not just as a humanitarian concession to prisoners.
At present, visiting rights are often needlessly limited, especially in maximum security institutions. In some cases, visiting hours are concentrated in daytime hours during week days, and it is difficult, if not impossible, for working friends and family members to visit regularly. The problem is especially serious in those institutions that are far from metropolitan areas (such as the Kent maximum security institution) and are hard to reach in any event.
The physical condition of some visiting areas also makes it impossible for prisoners to communicate with visitors in a natural way. For example, prisoners held in certain portions of the Lower Mainland Regional Correctional Centre (Oakalla) have glass partitions between the prisoner and the visitor. Conversation takes place by telephone, and there is no guarantee that the conversation will not be monitored. All inmates held in certain parts of the institution (including persons held on remand who have not been convicted) must use the facility. There is no attempt to limit its use to cases in which there is evidence that an inmate might use the visit as an opportunity to take a hostage, escape, or obtain weapons or contraband. Obviously, it is not easy for spouses or other visitors to establish any sense of intimacy in such circumstances.
In many institutions, discretionary powers are used to bar certain persons from visiting prisoners without good cause. Sometimes it is reasonable to bar a visitor (for example, where there is evidence the visitor has used visits to pass contraband), but visitors have sometimes been barred for no good reason.
In the past, deprivation of visiting rights has been used as a disciplinary sanction against prisoners. If visiting rights serve institutional purposes as well as being pleasurable for the prisoners, such a policy is short-sighted and wrong.
Finally, the fact that some prisoners are held in institutions far from their home communities makes visits by friends and relatives impossible. The problem is especially serious with respect to women prisoners held in federal institutions, since the only federal institution for women is in Kingston, Ontario. Arrangements are sometimes made with provinces to hold women prisoners in provincial facilities closer to home, but those facilities are themselves often far from the prisoners’ home communities, and provinces may impose conditions (such as the right to insist on the transfer of a prisoner) that result in transfers to Kingston.
The enactment of the B.C. Correctional Centre Rules and Regulations in 1978 dealt with some of these problems. For example, the right to visits by counsel was protected, and it was provided that withdrawal of visiting rights should not be used as a disciplinary sanction unless the violation committed was a direct result of a visit. However, problems still remain, particularly with respect to the physical arrangements for visits in some institutions. Visiting rights in federal institutions are also inadequate.
Our recommendations are as follows:
- Visits should be treated not as a privilege, but as a right that can be restricted only for good cause. Visits should never be denied as a disciplinary sanction.
- There should be ample visiting hours during evenings and weekends so that working friends and relatives can visit.
- Visits should normally take place in facilities that allow for physical contact and social intimacy. A physical barrier between prisoner and visitor should be used only if an independent tribunal has found that it is necessary for the safety or security of the prisoner, the visitor or the institution, or if there are reasonable grounds to believe that prohibited objects will otherwise be transferred. Wherever possible, less intrusive means (such as metal detectors) should be used to avoid such problems.
- Visits should not be monitored unless an independent tribunal has found monitoring to be necessary for the safety or security of the inmate, the visitor or the institution. Conversations with legal counsel should never be monitored.
- Visitors should not be barred unless they are violating prison rules during a visit or an independent tribunal has found that there is reasonable cause to believe the visit would jeopardize the safety or security of the institution.
- If a close relative of an inmate cannot visit an institution, due to serious illness, the prisoner should be allowed to visit that person outside the institution (for example, at a hospital) unless it can be shown that security would be jeopardized or the expense would be prohibitive.
- Whenever possible, prisoners should be held in or near their home communities so that contact with family and friends can be maintained.
Monitoring telephone calls from a prisoner is another way in which prisons now abrogate the right of prisoners to communicate freely and privately with the outside world, and one which appears to be in breach of the Criminal Code.18 This is another instance of the invasion of basic civil rights (the right to privacy and freedom of speech) which cannot be justified by reason of rehabilitation of the prisoner or institutional security. We suggest that prisoners’ telephone calls to their families cannot be rehabilitative when a total lack of privacy exists and the parties are unable to express themselves freely.
The BCCLA recommends the abolition of the practice of monitoring prisoners’ telephone calls.
Lack of access to information is another way in which the prisoners and the prison system are isolated. It is generally understood by lawyers, prison reformers and prison social workers that the prisoner is deprived of adequate access to information through the discretionary power delegated to the prison administration. Although prisoners can receive daily newspaper in B.C. prisons, they are often deprived of this and other information. The prison legal libraries are inadequate. For example, in one B.C. prison recently a prisoner had to depend on a 1968 Criminal Code for legal information.19 In the case of general reading material, a policy exits that books sent to prisoners must come directly from the publishers. Further, the bulk of the material found in prison libraries is outdated. In a 1975 study done by two UBC law professors, they noted that “the top stack” of magazines at the Thurston Forest Camp library featured a 1948 issue of Popular Mechanics.20
The lack of adequate access to information has several adverse ramifications. It is another way in which the prisoner is isolated from free society. It hinders re-integration upon release and frustrates prisoners who try to act responsibly where they do retain certain rights. For example, where a prisoner retains the right to vote, it is impossible to exercise this right responsibly without the right to adequate access to information.
Prisoners are also frustrated through limited access to the media. Not only is it important that prisoners have the right to be informed of events in free society, but as well, they should be able to tell the public what occurs within the prisons. Furthermore, it should be the right of the B.C. public to review how their elected governments treat prisoners. Today the B.C. prisons are effectively isolated from independent, external review and will remain that way unless rights to communicate are legislated and enforced.
The BCCLA recommends legislation that would ensure the right of access to the media.
The prison disciplinary system has been recognized as severely limiting basic civil liberties, such as the right to natural justice and due process of law and the right to be free from cruel and unusual punishment.21 The phenomenon of the abrogation of prisoners’ civil rights through the arbitrary use of delegated legislative authority, unchecked by procedural safeguards or by our courts, can be seen again in the prison disciplinary system.
As the Parliamentary Sub-committee on Penitentiaries in Canada points out, there is a “…general absence within penitentiaries of a system of justice that protects the victim as well as punishes the transgressor; a system of justice that provides a rationale for ordering a community according to decent standards and rules known in advance; a system of justice that is manifested by fair and impartial procedures that are strictly observed; a system of justice that proceeds from rules that cannot be avoided at will; a system of justice to which all are subject without fear or favour.”22 This lack of any semblance of justice, fairness, impartiality and respect for the dignity of man, is the negation of the prison system’s long range desire to protect society by promoting a respect for the law in the prisoner.
It is a basic concept of our judicial system that freedom can be taken away only through a due process system of law. The concepts of natural justice and due process of law are not carried through into the prison disciplinary system.
The Ontario Court of Appeal decision, (1969) Regina v. Institutional Head of Beaver Creek Correctional Camp, Ex parte MacCaud,23 ruled that the disciplinary court must act in accordance with the rules of natural justice where the court’s decision affects the prisoner’s civil rights as a “person” or his “statutory civil rights” as a prisoner. The result of this decision was a distinction whereby the disciplinary court must provide due process only when denying the prisoner his civil right to personal security (e.g., corporal punishment) or a “statutory civil right”; but it need not provide due process where the punishment affects his status as a prisoner (e.g., solitary confinement and earned remission of sentence time).
The Supreme Court of Canada in Martineau v. The Matsqui Institution Disciplinary Board,24 No 1. and No. 2 has now held that although prison disciplinary decisions are administrative and not judicial, nevertheless they must be made in accordance with the duty to act fairly and the courts have jurisdiction to review disciplinary decisions to ensure the performance of that duty. However, the Supreme Court intimated that this jurisdiction should only be exercise where a “serious injustice” has occurred. A review of the cases since Martineau indicates that the courts have maintained their reluctance to interfere in the administration of prison justice.
A deeply disturbing feature of the Martineau decision is that the Supreme Court held that while the Penitentiary Act and regulations might confer rights on a prisoner, the breach of which could give rise to judicial relief, Commissioner’s Directives which contain the great bulk of the procedures governing prison disciplinary decisions were not “law” and therefore gave rise to no rights enforceable by prisoners. Non-observance of these Directives therefore did not provide a basis for judicial relief unless the non-observance coincidentally breached the duty to act fairly. The post-Martineau decisions suggest that the courts will readily find that the prison administration acted “fairly” and will concede little in the way of procedural due process to prisoners.
The arbitrariness of the present disciplinary system arises, in part, from the rules that govern it. The rules are not always made known to the prisoners in advance or, where the rules are known, their wording is too vague for prisoners to know exactly which conduct a particular rule encompasses.
In the federal institutions in B.C., rules of conduct are set out in the Penitentiary Service Regulations and Commissioner’s Directives (Pursuant to s. 29(1) and (2) respectively of the Penitentiary Act).25
The disciplinary rules, which the prisoners in provincial institutions must observe, are found in the Provincial Gaol Rules and Regulations (made pursuant to s. 15 of the Corrections Act).26 This paper will not attempt to discuss the rules in detail, but rather, we will point to the general fallacies in their construction and implementation which result in the denial of civil liberties. The rules result in an unjust procedure in two ways: 1) inadequate procedural safeguards to ensure “notice” of all disciplinary offences and 2) the vague “catch-all” wording of the rules themselves.
In order for punishment to encompass the civil right to justice through due process of law, there must be prior written notice of what constitutes an illegal activity so that an individual can regulate his actions accordingly. Federal legislation provides no enforceable provision requiring written notice of prison offences. In some provincial institutions, the prisoner receives upon reception to the institution a booklet which contains a list of disciplinary offences. The Provincial Gaol Rules and Regulations provide that the rules shall be printed and posted in a conspicuous place in the institution. However, in practice such notice is often not provided. Rather, the prisoner is left to rely on hearing the rules through the prison grapevine.
The second way in which the disciplinary rules result in an unjust procedure is by virtue of their vague wording. Laws in a free society must be written concisely so that the individual knows what actually constitutes an offence and therefore, regulates his actions accordingly in order to avoid transgressing them. The wording of a rule must not be so wide as to create a “catch-all” offence. For example, under the federal rules in s. 2.29(k) of the Penitentiary Service Regulations:
Every inmate commits a disciplinary offence who… does any act that is calculated to prejudice the discipline or good order of the institution.
This is a common charge made against prisoners.27 An example of a similar rule is found in the Provincial Gaol Rules and Regulations: 2.19
A prisoner is guilty of an offence against the discipline of the gaol if he or she… in any way offends against good order and discipline.
It is possible for almost any behaviour to be considered offensive to the “good order and discipline” of the goal.
Where a prisoner, like any other citizen has been charged with an offence, the principle of natural justice and due process of law requires that he be fully informed of the charge against him, in writing, so that he may prepare his defence. This requirement has been enunciated in the United Nations’ “Standard Minimum Rules for the Treatment of Prisoners”.28 The present regulations in B.C. either do not require such notice or else lack the force of law to prevent the arbitrary disregard of this provision by prison officials. The current provincial Gaol Rules and Regulations contain no provision for written notice and in practice only verbal notice is given. In the case of the federal institutions, the Commissioner’s Directivesstate: s.61(4) CD213 (August 1975)
b. The hearing of an inmate who is under charge shall commence, as far as is practicable, within three working days from the date of the offence but may, when circumstances require, be adjourned from time to time.
c. No finding shall be made against an inmate charged under Section 2.29 of the P.S.R. for a serious or flagrant offences unless he:
(1) has received written notice of the charge in sufficient detail so that he may direct his mind to the occasion and events upon which the charge is made, and a summary of the evidence alleged against him;
(2) has received the written notice and summary referred to in paragraph (1) at least 24 hours before the beginning of the hearing, so that he has reasonable time to prepare his defence;
However, where the procedure laid out in the Directives is abused, there is no remedy for the prisoner. As previously mentioned, the courts have ruled that the Directives do not confer statutory rights on inmates affected by them. While the Martineau (No. 2) decision may result in the finding that written notice is part of the “duty to act fairly”, the implementation of the recent House of Commons Sub-committee’s recommendation that “… the directives should be formally enacted as regulation”29 is still necessary to ensure that the above provisions will establish a “right” to written notice of any charge.
In conclusion, the absence of written “notice” of what constitutes an offence and written “notice” of any charge laid, are two ways in which the civil right to “justice” in “the determination of… rights and obligations”(30) is unjustifiably denied the prisoner in the prison disciplinary system.
Where a formal offence report has been made against a prisoner, he or she is brought before the “disciplinary court” for a hearing of the case. The present prison disciplinary system functions differently from that of our regular court system in that the accused may or may not be allowed to cross-examine the accuser or present the defence. The prisoner may lose the right to physical and/or mental safety (i.e. may suffer corporal punishment and/or solitary confinement) and the right to liberty (through loss of statutory and/or earned remission of one’s prison sentence), and therefore it is essential that the principles of natural justice be adhered to in this unique part of the prison system. Furthermore, although the penal goal is to re-integrate the prisoner into lawful society, the present system does nothing to promote respect for the law in prisoners. The Parliamentary Subcommittee report stated:31
The inmates generally regard the board as a `kangaroo court’ and many of them prefer to simply plead guilty to the charge before them just to get the process over with.
In order to ensure the civil right to a fair hearing, the prisoner’s guilt or innocence should be determined by an impartial third party, not by the accusers. It is true that independent chairpersons preside over disciplinary boards in federal maximum and some medium security institutions, and to a more limited extent in the provincial system in institutions in B.C. But in most provincial institutions, the prisoner is tried by “… the Warden or one of his deputies or the disciplinary panel…”. Similarly, in those federal institutions where there is no independent chairperson the prisoner who has been charged with a flagrant offence must be heard by the Director of the Institution or by an officer designated by him who must not be below the level of Assistant Director. “Two staff members may be appointed to assist, but their role shall be as advisors only.”32 Often the board is made up of the Superintendent of the institution, a counsellor and a senior custody officer.33 Prisoners frequently perceive this situation of “them” against “us” as being unfair.
Additional procedural aspects of the present disciplinary court system which result in a denial of natural justice are: 1) the absence of the right of the prisoner-defendant to present a full defence; 2) the lack of independent representation; and 3) the double jeopardy resulting from some disciplinary penalties.
The need for the opportunity to present a full defence is set out in section 30(2) of the United Nations “Standard Minimum Rules for the Treatment of Prisoners”.34 The federal Commissioner’s Directives state that “no finding shall be made against an inmate charged… for a serious or flagrant offence unless he:35
(3) has appeared personally at the hearing so that the evidence against him was given in his presence;
(4) has been given an opportunity to make his full answer and defence to the charge, including the introduction of relevant documents, and the questioning and cross-examination of the witnesses which shall be done through the presiding officer;
However, because the Directives create no legal rights and because in many cases no impartial body presides over the hearing, this provision is easily overlooked.
At the “hearing” of a case, the prisoner is not able to hear all evidence on either side, and may not cross-examine witnesses. What frequently occurs is that once the plea has been entered, the prisoner is asked to leave the room. During the prisoner’s absence, the presiding prison official discusses not only the current charge, but also the accused’s prison behaviour in general, with other prison employees (e.g. counsellor and guards). This exchange of information in the prisoner’s absence is justified by the prison administration on grounds of rehabilitation and/or security, but the problem is that it may prejudice the decision of the disciplinary court. Furthermore, the information given may not always be reliable. Although the information exchanged is sometimes beneficial to the prisoner, he or she should be allowed to hear and have the chance to refute unfavourable evidence, as well as call witnesses in order to present an adequate defence. Unless and until the procedure of the disciplinary boards includes these rights, the punishment meted out by the boards cannot be considered fair and just.
The absence of access to independent representation is another procedural aspect which places prisoners at a disadvantage in terms of effectively communicating defences. In federal institutions, prisoners often are represented by their counsellors; however, the fact that these people are prison employees often hinders their effectiveness in helping the inmates.
Another abrogation of the prisoner’s right to justice occurs in the “double jeopardy” resulting from some disciplinary awards. One of the legal principles of our judicial system is that an individual should not be punished more than once for the same crime. The belief that the same principle should apply to the prison disciplinary system is set forth in the U.N. Minimum Standard Rules for the Treatment of Prisoners, s. 30(1):36
No prisoners shall be punished… twice for the same offence.
In the case of the federal institutions, the Directives state that the Institutional Head shall decide whether the offence is one which should be dealt with externally or internally, thus theoretically avoiding “double jeopardy”. In reality, punishment for the same offence often is meted out by both the criminal and prison disciplinary courts. For example, an attempt escape by a prisoner may result in a conviction and an additional prison sentence under the Criminal Code, while concurrently under the prison disciplinary code the prisoner could be punished for “… damaging government property.”37
In conclusion, the BCCLA agrees that an independent chairperson is needed to ensure fairness and impartiality in the conduct of the disciplinary hearing. In view of the continuing reluctance of the courts to enter the field of prisoners’ civil rights, legislation is required to guarantee procedural fairness. This must include the right to a hearing before an independent chairperson, the right to written notice of the charge, the right to representation in order to ensure adequate presentation of defence arguments, the right to be present and hear all evidence presented in a disciplinary board, and protection against the “double jeopardy” aspect of some disciplinary awards.
The imposition of solitary confinement by the disciplinary court takes two forms, “punitive dissociation” and “administrative dissociation”. In federal institutions, “punitive dissociation” may be meted out by the disciplinary court only for a “serious offence” as specified by the Penitentiary Regulations and the Commissioner’s Directives.38 The regulations state that “punitive dissociation” is not to exceed thirty days.39 In the case of the provincial prisons, the Gaol Rules and Regulations stipulate that “punitive dissociation” may be imposed by the disciplinary court for fifteen days in the case of “minor offences” and thirty days in the case of “serious offences”. No time limits apply to “administrative dissociation” in federal institutions: it is meted out at the discretion of the institutions’ directors in accordance with the Penitentiary Service Regulations for “… the maintenance of good order and discipline in the institution, or in the best interest of the inmate.”40
Isolation for short periods of time (i.e. several hours) may be warranted as a way to interrupt an explosive situation, impose a cooling off period, and allow prison officials time to develop remedial action. Also, isolation from the general population may be required for the prisoner’s own protection (e.g. in the case of an informer). However, such reasons cannot justify the physical conditions and the duration of isolation that have prevailed in some British Columbia penal institutions. The 1955 U.N. Minimum Standard Rules for the Treatment of Prisoners state:
…punishment by placing in a dark cell, and all cruel, inhuman, or degrading punishments shall be completely prohibited as punishment for disciplinary offences.
The pronouncement has been enunciated by section 2(b) of the Canadian Bill of Rights.41 Solitary confinement in some B.C. institutions has violated the civil right of all citizens to be free from “cruel and unusual punishment”.
The loose wording of the provision for “administrative dissociation” and the lack of a time limit on the imposition of this measure, give wide discretionary power to the institutional directors. For example, “administrative dissociation” often is used as a disciplinary measure by prison administrators, even though the prisoners involved have not been convicted for disciplinary offences. In this way, the maximum of thirty days set out by the Directives for “punitive dissociation” is easily subverted. Consequently, an inmate may be, and often is, confined to isolation for indefinite and long periods of time.
In the federal court case of McCann, et. al. v. The Queen, the court declared solitary confinement at the B.C. Penitentiary to be “cruel and unusual punishment”. The ten prisoners who testified were examples of prisoners who has been incarcerated in isolation units for excessively long periods of time. For example, John Emmett McCann had been held in “administrative dissociation” for a total of 1,471 days between January, 1967, and May, 1974 (“one continuous period of 98 days, another of 754 days, another of 60 days and another of 342 days”).42 “Administrative dissociation” is also used as pre-trial detention for those awaiting charges on the outside (i.e. escape) or charges before the prison disciplinary board. Thus, under “punitive” and “administrative” dissociation the prisoner’s civil freedoms of association and communication are severely reduced by a disciplinary court which uses loosely worded legislative authority for its acts, and operates without due process of law.
The physical conditions of isolation may have such lasting psychological effects as to constitute “cruel and unusual punishment”. There is a large body of studies showing that sensory deprivation can have a marked effect on mental well-being.43 The isolation units currently in use in some B.C. provincial institutions are, without a doubt, lacking in sensory stimuli. The cow barn dungeon at Oakalla consists of windowless cement cells with solid steel doors and lights which burn continuously (although they are dimmed at night).44
“Dissociated” prisoners also are denied the social stimuli of association and communication with other human beings. In both “punitive” and “administrative” dissociation prisoners may not associate with the other prisoners being held in the isolation units. Thus, except for letters or outside visitors the prisoner in solitary confinement is totally cut off from physical and social stimuli. Any benefit to the security of the institution that this type of isolation may have is outweighed by the destructive influence that it has on the prisoner. As one study pointed out:45
There seems to be little doubt that exposure to conditions of sensory perceptual deprivation, is a stressful experience for many, though not all, subjects. Subjects often report extreme boredom, restlessness, irritability, anger, unrealistic fears and anxieties, depression, and physical complaints rarely reported by subjects in control conditions.
Society cannot expect such individuals to cope responsibly upon their release into normal society.
In the McCann case it was this lack of physical and social stimulation and the excessive time spent in isolation at the B.C. Penitentiary that was found to be in violation of the right to be free from cruel and unusual punishment. Much evidence on the psychological effects of solitary confinement was given both by prisoners who had been there and by psychiatrists, doctors, and other experts. Andrew Bruce, a prisoner, had the following to say about solitary confinement:46
You get twisted about. Your frustration turns to hate towards the guards and all the people who keep you there… you see things in people who you know aren’t there… your hate helps you to cope.
Dr. Stephen Fox, who holds a Ph.D. in psychology, is considered an expert in the field of sensory deprivation and its effects, particularly in prison isolation units. He had the following to say about the isolation units at the B.C. Penitentiary and its effects on prisoners held there:47
I think my feeling is that it is among the worst possible isolation units, in the style in which it is administered, and the mode in which it is conducted… the demand for ultimate and total compliance is to create a creature who has no respect for their own life, they already long ago have no respect for your life… I am trying to say that a person comes to have no dignity, no self-respect, no identity, you are faced with the most violent, the most dangerous possible human being. You can’t reduce men to that. You risk your life to reduce them to that… There is an area you do not want to enter, and that is to move to the place where you have eliminated all possible dignity.
Dr. Fox went on to state that, in his view, there is nothing positive to be said about solitary confinement, in terms of penal reform.
The BCCLA recommends the immediate abolition of solitary confinement. This is not to say that some form of segregation for a very limited purpose may at times be necessary for the purposes of institutional security or the security of the prisoner. However, present physical settings and uses of isolation units and length of time in those units in British Columbia institutions are totally unacceptable.
The public must be educated to understand the necessity of spending tax dollars to build new types of isolation units that are different only in their physical separation from the general population. The steel doors, the continuously burning lights and the bare cement walls must be eliminated. Open bars would allow for some communication with the other prisoners in the isolation area. Also, all prisoners, whether under “punitive” or “administrative” dissociation, should retain the right to a radio and plentiful reading material. Such measures would provide a healthier amount of physical and social stimuli.
However, because even this type of isolation is a severe form of punishment, it should be imposed only by a system that operates according to natural justice and due process of law and is constantly monitored by some external and publicly accountable group.
Although the courts in the past have become involved in the issue of solitary confinement, they lack the administrative machinery to enforce any declaration and, in general, do not wish to become involved with any frequency. Therefore, legislative change is needed to provide a new system which would include procedural safeguards and concise criteria that would preclude any subversion of the system. Such legislation in regard to the disciplinary court procedure would prevent the arbitrary imposition of “punitive dissociation”.
The institutional discretionary power to impose “administrative dissociation” in federal institutions must be significantly reduced by setting out concise criteria which would prevent arbitrary decisions. Law professor Michael Jackson has suggested legislating the following criteria and review process for the director’s right to impose “administrative dissociation” as a form of pre-trial detention pending a prison disciplinary hearing of an alleged offence or a trial of a criminal charge:48
(a) there is ground to believe that the offence if proved, would lead to a change in the security rating of the inmate;
(b) the offence involves actual or threatened violence to another person or incitement of other inmates and there is a substantial likelihood that the offence will be repeated or continued;
(c) the offence involves the refusal to obey the lawful order of a guard or other staff member and there is a substantial likelihood that the refusal will lead to widespread disobedience by other inmates;
(d) the inmate at the time of being charged with an offence reacts in a violent or uncontrolled manner. In the last case the inmate should be released as soon as he has regained control and in the first three cases (and in the last if the inmate remains violent or uncontrolled) a hearing should be required within twenty-four hours of dissociation to review the need for dissociation in the light of the criteria.
This hearing should be conducted under the same conditions as a disciplinary hearing, i.e. with notice of the charge, a personal appearance and the right to cross-examine and call witnesses.
The 1974-75 Annual Report of the Correctional Investigator reported that the most frequent complaint made by prisoners in federal institutions concerns the transfer procedure. This procedure is yet another way in which the civil rights of prisoners are violated. The information compiled for this paper concerns the federal institutions in British Columbia only.
A wide administrative discretion is given to the director to order a prisoner’s transfer to a different penal institution. Under the present system, directors of federal institutions need not, and often do not, give notice of, or reason for transfers. Where transfers are used as disciplinary tools, prisoners are given no opportunity to refute the alleged offences. This procedure, while totally lacking in any vestige of procedural safeguards, may have serious repercussions on the prisoners involved. For example, if a transfer is based on a “belief” by the prison administration that a crime has been attempted in the prison, the prisoner’s chance of parole eligibility is significantly reduced.49 Thus, the use of the transfer mechanisms may abrogate a prisoner’s right to freedom by increasing the length of time to be served. Generally a prisoner, after serving a certain amount of time and on the basis of other factors, including behaviour while in prison, has the right to be considered for parole. If the reason for not granting parole to a prisoner is based on a record mistakenly stating that the reason for a transfer was an attempted crime in another prison, the prisoner is arbitrarily denied a certain amount of freedom from imprisonment which he or she would have otherwise been entitled to. The fact that a transfer is usually to an institution with greater security is, in itself, a curtailment of the prisoner’s freedom. Transfers also may disrupt educational programs, visits by family and friends, or friendships which prisoners have built up within particular institutions. This situation results in a great deal of anxiety among prisoners. The whole procedure is an affront to the dignity of anyone. In speaking of the present transfer system, the Parliament Subcommittee Report on the Federal Penitentiaries commented:50
…ordinary standards of decency require that a person be conceded the dignity of being treated as something rather than an object to be manipulated according to whatever appeals to the absolute power and unfettered discretion of the Canadian Penitentiary Service.
Legislation is required to protect the civil rights of prisoners who are sometimes drastically affected by the present transfer process. Prisoners should be given advance written notice of the reasons for impending transfers. Pre-transfer hearings are needed. The boards at these hearings should resemble the proposed disciplinary boards. That is, because such important rights are being affected, an independent chairperson presiding over each hearing is essential to ensure impartiality. Where security does not warrant their exclusion, prisoners should be guaranteed the opportunity to hear all evidence against them and to defend themselves by presenting their own evidence and calling witnesses.
We recognize that prison institutions sometimes have an interest in maintaining confidentiality of information. For example, where the information against a particular prisoners has come from informers, particularly prison informers, there is a real risk of reprisal from other inmates. However, the requirement of impartiality for the protection of prisoner civil rights can be reconciled with the institution’s interest in confidentiality, where a valid threat exists, through an independent chairperson. The manner in which such a person could reconcile these interests has been outlined by Professor Michael Jackson:51
This official could be presented with all the institution’s information, including confidential material and could make a judgement as to the reliability and, in light of other non-confidential corroboratory evidence, the justifications for keeping the information from the inmate. Since it could be expected that the claim to confidentiality would be readily made and since it makes it more difficult for the inmate to answer the charge, directives should clearly establish a presumption in favour of disclosure of all information with the burden of establishing the need to maintain confidentiality in the particular case. Such a procedure, while recognizing a claim to confidentiality, would allow for case by case scrutiny and where, the claim is upheld, and inmate access to the information refused, there would at least have been an evaluation by an independent judge.
6. Psychiatric and medical care Psychiatric facilities are minimal in both the federal and provincial institutions in British Columbia. Statutory authority is given to the prison administrations to transfer prisoners to a psychiatric hospital.52 However, because space is limited in the psychiatric hospitals, only prisoners exhibiting very unique behaviour are taken there. We are concerned here with the psychiatric facilities “within” the prison and with those prisoners who are emotionally disturbed but not sufficiently so as to warrant a transfer to a psychiatric hospital. Prison doctors who were interviewed by Black and Weiler stressed “… that for reasons of preventing mental deterioration of the incarcerated population, there is a glaring need for psychiatric counselling and treatment… to avoid psychosis from occurring due to the obvious mental strain incumbent in a penal setting.” The “Report to Parliament” on the federal penitentiary service had the following comment:53
One of the failings of our criminal justice system is a complete mismanagement of the problem of mentally disturbed inmates. The present narrow legalistic definition of insanity used by the courts has resulted in a large number of mentally ill offenders being sentenced to terms in penitentiaries, where they receive no real help at all, and are often, in fact, made even more unstable by the pressures and tensions of institutional life.
Another issue concerns the role that prison psychiatrists play in the commitment or discharge of a prisoner to a mental hospital. The present decision-making process lacks proper procedural safeguards to ensure that an administrative decision will not result in the arbitrary denial of the prisoner’s freedom. As A.W. Gragg stated in his article, “Psychiatry, the Inmate and the Law”, in order to avoid such a consequence, prisoners “committed to psychiatric centres should have the right of access to the courts, with the right of counsel, particularly in the event that any change in that status, which would result in lengthened incarceration, is contemplated.”
The BCCLA also is concerned with the quality of medical treatment within prisons. Where the medical personnel or treatment is inadequate there is no way in which the prisoners may protect himself against inappropriate treatment. The best safeguard against inadequate medical treatment is the right to independent medical advice. The Canadian Medical Code of Ethics recognizes the necessity of independent medical opinion as dating back to the ancient Oath of Hippocrates.
An Ethical Physician: s.5
…will recognize that the patient has the right to accept or reject any physician and any medical dare recommended to him. The patient has the right to request of that physician opinions from other physicians of the patient’s choice.
The consequence of denying prisoners the opportunity to consult freely with doctors from outside the prisons needlessly jeopardizes prisoners’ physical well-being. Such a result is not meant to be part of the punishment for committing a crime and does not seem to serve any justifiable function.
That such a threat to physical well-being could occur is evident from the Federal Court case, James F. McNamara v. N. Caros, Director of Matsqui Institution and Dr. J. Mendes, Medical Officer of Matsqui Institution.54 In that case, James McNamara was denied the right to medical treatment other than that prescribed by the institutional physician, Dr. J. Mendes. Dr. Mendes was not a qualified physician in B.C. because he failed to pass the Medical Council of Canada examinations. He was, however, a qualified physician in Saskatchewan, the only province which does not require that a doctor pass the Medical Council of Canada examinations in order to be licenced. The federal civil service requires that an “institutional doctor” be qualified merely to practice in a province. Thus, notwithstanding the fact that Dr. Mendes is not qualified to practice medicine in B.C., the prisoners could not protect their interests through the right to independent medical advice. The court case itself did not deal with this issue because it was dismissed on the technicality that Caros, the institutional director, was not the proper person to sue.
In conclusion, the BCCLA makes the following recommendations in regard to prison psychiatric and medical care:
- that the prison facilities in general be redesigned so as to minimize deleterious effects.
- that prisoners who are committed to mental hospitals be given the right of access to the courts, including the right to counsel, in order to challenge their status.
- that the right to prompt, independent medical consultation be provided for in the prison regulations.
The present system of parole is another aspect of our criminal justice system that had been criticized widely. The main thrust of the criticism had been directed at the exclusive jurisdiction and absolute discretion given the National Parole Board to grant, refuse or revoke parole. The apparent arbitrariness of Parole Board decisions is difficult to monitor because the Board is not accountable to any external person or agency.
This discussion of parolees refers both to those prisoners to whom the Board has granted parole and to those prisoners who are out on mandatory supervision. Those under mandatory supervision are equally subject to the wide discretionary power to revoke parole which is delegated to the Board by the Parole Act.
One of the thorniest issues in the operation of the National Parole Board concerns the revocation of parole. Revocation of parole often significantly increased the length of time an individual is denied total freedom. A prisoner on parole is deemed to be serving the remaining portion of his or her sentence on the street. If parole is revoked by the Board, for whatever reason, prisoners lose any statutory remission standing to their credit at the time of release on parole.55
The National Parole Board has sole discretion to revoke parole.56 Until recently there were no due process requirements, notwithstanding the fact that an individual’s freedom may be significantly affected. Now, new parole regulations provide for a post-suspension hearing prior to a revocation decision and require written reasons for a decision to revoke. However, the effectiveness of these amendments in making the parole revocation process a fair and just one is severely circumscribed by the Board’s practice of denying legal assistance to prisoners. Often the circumstances leading to a revocation decision centre on allegations of fact (for example, involvement in criminal or undesirable behaviour), which are capable of proof or rebuttal. The prisoners, denied access to the evidence against them (the Board is under no obligation to provide a suspended prisoner with relevant information in the possession of the Board, as it must prior to a review for parole) and denied the right to confront their accusers, are severely hampered in presenting defences. The provision of counsel coupled with a requirement for the supply of relevant material is mandatory to ensure that the revocation process meets minimum standards of fairness.
Although the new parole regulations provide for a hearing prior to a review for parole and for the supply of relevant information in possession of the Board to the prisoners, again the lack of legal assistance in marshalling and presenting prisoners’ cases places less articulate prisoners at a grave disadvantage.
Legislation is needed to reduce the administrative discretionary power delegated to the Parole Board under the present Parole Act. The Parole Board should be made accountable to the public, perhaps by establishing an impartial mediator or board to which appeals could be taken. In order to make the internal parole procedure fair and in turn with the right to natural justice, procedural safeguards should be regulated. In both granting and revoking parole, the inmate should be given the right to a hearing, should be furnished with relevant information in the possession of the Board, and permitted to retain legal counsel.
Peaceful resolution of conflicts between prisoners and prison staff should be a goal of the correctional system. Prior to 1979 there was no effective system of grievance resolution operating in our prison system. There remains no method for resolution of grievances between prisoners.
In 1979 a new procedure was introduced in the federal system on a pilot project basis. In this project a prisoner must submit a written complaint to the person in charge of the area where the problem exists. A reply is due in five working days. If the matter is not resolved the complaint can go on to be discussed and reviewed by the Inmate Grievance Committee (comprised on two prisoners, two staff members, and an independent non-voting chairperson) with the person complaining either presenting the case directly or being represented by another prisoner. The Committee makes a recommendation to the prison Director. Again, the Committee has five working days to hear the complaint and the Director has five working days to decide whether or not to accept the recommendation and a written decision is required. Prisoners submitting grievances then have two choices. They can have the issues reviewed by an outside Review Board (two volunteers, preferably citizens, and advisory members, including one staff member and one prisoner, who make submissions but not decisions). The Review Board has ten days to submit a recommendation to the prison Director and the Regional Director. The second choice is to submit a grievance directly to the Regional Director who has ten days to respond in writing. The prisoner can then appeal this decision to the Commissioner of Corrections in Ottawa who again has ten days to respond.
This new system is organized and maintained by one staff member and one prisoner, and although difficulties in getting the system into operation have been reported at Kent, in general the first reports from institutions where the system has been operating are encouraging. The inclusion of an independent chairperson and two volunteers on the Review Board provides some “outside” accountability but at present there is no way to evaluate their possible influence.
A prisoner must proceed with the grievance system prior to submitting any matters to the Correctional Investigator.
The Gaol Rules and Regulations, which apply to provincial correctional centres, provide that a prisoner can make a written complaint to the officer in charge of the unit where the prisoner is housed. This officer or the Director shall investigate the complaint and within 7 days advise the prisoners in writing of the results of the investigation. At the same time a prisoner may send a written complaint to the Correctional Investigator and a sealed envelope addressed to the Corrections Investigator shall be forwarded forthwith. The Correctional Investigator is to advise the prisoner in writing of the receipt of a complaint and investigate and advise the prisoner in writing of the results of the investigation as soon as practical and reasonable.
In practice the Correctional Investigator is viewed by prisoners as a part of the correctional system and prisoners indicate they are not satisfied with the amount of time taken to investigate complaints or with the results of the investigation of complaints.
An alternative grievance procedure available in British Columbia is the provincial Ombudsman. The Ombudsman is generally defined as “a constitutional officer appointed by parliament to receive, investigate, and report on citizen complaints of bureaucratic abuse”. The general characteristics of this office are:57
full independence from agencies to be investigated; impartiality; universal acceptability; full power to investigate, and power only to recommend and to publicize.
The advantage of this office is not only its impartiality but also the Ombudsman’s accessability and power to open prison files to review. Despite these good points, there are shortcomings in the Ombudsman’s model, again due to lack of staff and resources.
The BCCLA recommends that grievance procedures, particularly provincial procedures, be legislated to include and increase neutral third-party participation in the resolution of complaints. Similarly we recommend that prisoners be given the mandate to devise and recommend methods to resolve conflicts which arise between prisoners.
In conclusion, we must note that there are several subjects appropriate to this occasion which have not been included in this brief. It is clear to us, for example, that we have great reservations about the present system of mandatory supervision. In addition, the whole parole system in all of its serpentine complexity is repugnant to large numbers of people who are familiar with its machinations. We have not included recommendations on these subjects, nor on the native offender, nor on sentencing practices, even though we have significant concerns about aspects of these areas from a civil liberties perspective. We hope to be able to research and comment on these subjects and other related ones in the future.
5. See: Guenther, P., “Enfranchisement for Prisoners: A Look at Present Laws and Practices”, (1975) 17 Can. J. Corr. p. 250; “Enquet Publique Sur La Detention et La Rehabilitation au Québec”, La Ligue de Droits de l”homme, December, 1973, Montréal.
2.18 In so far as practical the censorship of correspondence shall be avoided… but nothing herein shall be deemed to limit the authority of the Commissioner to direct the institutional head to order censorship of correspondence… to the extent considered necessary or desirable for the reformation of inmates or the security of the institution.
The provincial Gaol Rules and Regulationsgives wider authority:
2.40(b)Every letter to or from a prisoner shall… be read by the Warden or by a responsible officer deputed by him… it is within the discretion of the Warden to stop or censor any letter, or any part of a letter, on the ground that its contents are objectionable or that the letter is of excessive length.
In the federal penitentiaries in B.C. inmates can write uncensored letters to “privileged correspondents”.
Commissioner’s Directive 219, s. 8a
(1)Members of the Senate
(2)Members of the House of Commons
(3) Members of provincial legislatures
(4) Members of legislative councils for Yukon and Northwest Territories
(5)The Solicitor General
(6)The Commissioner of Penitentiaries
(7)The Chairman of the National Parole Board
(8)The Federal Correctional Investigator
(9)Provincial Ombudsmen (see Annex “A”)
(10)Commissioner of Official Languages
12. “Attacking Prison Mail Regulations”, A Project of the American Bar Association Commission on Correctional Facilities and Services, National Resource Center on Correctional Law and Legal Services, Washington, D.C.
Inmates’ outgoing and incoming telephone conversations may be monitored, provided the originator of the call (inmate or outsider) is advised that such communication may be intercepted. In institutions, a small sign shall be posted by every telephone made available for inmates’ use, clearly stating that telephone conversations may be monitored. In the case of incoming calls, the caller shall also be advised that his conversation may by intercepted by the institutional authorities.
20. See, for example: Report of the Royal Commission to Investigate the Penal System of Canada, Queen’s Printer, Ottawa, 1934 (Archambeault Committee); Report of the Committee appointed to Inquire into the Principles and Procedures Followed in the Remission Service of the Department of Justice of Canada (Fauteax Committee), Queen’s Printer, Ottawa, 1956; Report of the Canadian Committee on Corrections (Ouimet Report), Queen’s Printer, 1969; W. Black and J.M. Weiler, British Columbia Correctional Institutions Report, May, 1975, page 15.
21. For an in depth study of the federal penitentiary disciplinary system in B.C. see: Jackson, Michael, “Justice Behind the Walls”, (1974) 11 Osgoode Hall Law Journal, page 1. A very similar situation exists in the provincial system according to Professors W. Black and J.M. Weiler in their “British Columbia Correctional Institutions Report”, May 1975.
The Governor in Council may make regulations
(a)for the organization, training, discipline, efficiency, administration and good government of the Service;
(b)for the custody, treatment, training, employment and discipline of inmates; and
(c)generally, for carrying into effect the purposes and provisions of this Act.
(2)The Governor in Council may, in any regulations made under subsection (1) other than paragraph (b) thereof, provide for a fine not exceeding five hundred dollars or imprisonment for a term not exceeding six months, or both, to be imposed upon summary conviction for the violation of any such regulation.
(3)Subject to this Act and any regulations made under subsection (1), the Commissioner may make rules, to be known as Commissioner’s directives, for the organization, training, discipline, efficiency, administration and good government of the Service, and for the custody, treatment, training, employment and discipline of inmates and the good government of penitentiaries.
1960-61, c.53, s.29.
Pursuant to section 29, section 2.29 of the Penitentiaries Regulations provides:
Every inmate commits a disciplinary offence who
(a)disobeys or fails to obey a lawful order of a penitentiary officer;
(b)assaults or threatens to assault a person;
(c)refuses to work or fails to work to the best of his ability;
(d)leaves his work without permission;
(e)damages government property or the property of another person;
(f)wilfully wastes food;
(g)is indecent, disrespectful or threatening in his actions, language or writing towards any other person;
(h)wilfully disobeys or fails to obey any regulation of rule governing the conduct of inmates;
(i)has contraband in his possession;
(j)deals in contraband with any other person;
(k)does any act that is calculated to prejudice the discipline or good order of the institution;
(l)does any act with intent to escape or to assist another inmate to escape;
(m)gives or offers a bribe or reward to any person for any purpose;
(n)contravenes any rule, regulation or directive made under the Act; or
(o)attempts to do anything mentioned in paragraphs (a) to (n).
15.(1) For the purpose of carrying out the provisions of this Act according to their intent, the Lieutenant-Governor in Council may make rules and regulations
(a)for the management, operation, discipline, and security of correctional centres;
(b)for prescribing the duties of any person employed in or about a correctional centre;
(c)for the diet, clothing, maintenance, employment, training, and discipline of the inmates; and
(d)governing inmates duly authorized to be absent from a correctional centre,
and every rule or regulation made under this section has the force of law.
(2) The minister shall cause copies of so much of the rules made under subsection (1) as relates to the treatment and conduct of the inmates to be printed in legible characters and to be posted up in conspicuous parts of the correctional centre, so that every inmate may have notice of the rules.
(R.S. 1960, c.2888, ss.26, 27, am.); 1970, c.10, s.15; 1973 (2nd Sess.), c.105 s.9.
Pursuant to this section, s. 219 of the Gaol Rules and Regulations provides:
219A prisoner is guilty of an offence against the discipline of the gaol if he or she
(a)disobeys any order of the Warden or of any other officer or any gaol rule;
(b)treats with disrespect any officer or any person authorized to visit the gaol;
(c)is idle, careless, or negligent at work, or refuses to work;
(d)uses any abusive, insolent, threatening, or other improper language;
(e)is indecent in language, act, or gesture;
(f)commits any assault against another prisoner;
(g)communicates with another prisoner without authority or enters the cell of another prisoner or any other part of the gaol where he has no right to be;
(h)leaves his cell, place of work, or other appointed place without permission;
(i)wilfully disfigures or damages any part of the gaol or any property which is not his own;
(j)does not keep his person, clothing, bedding, and cell clean and neat;
(k)has in his cell or possession any unauthorized article or attempts to obtain such an article;
(l)gives to or receives from any person any unauthorized article;
(m)escapes from gaol or from legal custody;
(n)creates a disturbance or incites other prisoners to create a disturbance;
(o)commits violence against an officer;
(p)makes repeated and groundless complaints;
(q)in any way offends against good order and discipline;
(r)attempts to do any of the foregoing things.
28. 1955, s.30 (2):
No prisoner shall be punished unless he has been informed of the offence alleged against him and given proper opportunity of presenting his defence. The competent authority shall conduct a thorough examination of the case.
30. The Canadian Bill of Rights, R.S.C. 1970, App. III
s. 2 Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgement or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to
(e)deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;
s. 1It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,
(a)the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;
32. Commissioner’s Directives, no. 213, s.14 (August, 1975)
(4)deals in contraband with any other person
(5)does any act that is calculated to prejudice the discipline or good order of the institution;
(6)does any act with intent to escape or to assist another inmate to escape;
(7)refuses to work;
(8)gives or offers a bribe or reward to any person for any purpose;
(9)disobeys or fails to obey a lawful order of a penitentiary officer;
(10)wilfully wastes food;
(11)is indecent, disrespectful, or threatening in his actions, language, or writing, towards any other person;
(12)contravenes any rule, regulations, or directive made under the Act.
35. In the federal institutions a distinction is made between “minor” and “serious” offences. The “minor” offences are outlined by C.D. 213 s. (9):a.Minor offences will normally include:
(1)leaves his work without permission;
(2)fails to work to the best of his ability;
(3)wilfully disobeys or fails to obey any regulation or rule governing the conduct of inmates.
Where the offence is “minor”, punishment is informally meted out by a designated officer “after consultation with appropriate staff member”. The serious offences are handled formally by the Disciplinary Court. They are set out in C.D. 213, s.
Serious or flagrant offences may include:
(1)assaults or threatens to assault another person;
(2)damages government property or the property of another person;
(3)has contraband in his possession, i.e. any article not issued, furnished, or authorized by the institution (contraband shall be disposed of in accordance with C. No. 249);
The punishment that may be ordered for a flagrant or serious disciplinary offence shall consist of one or more of the following, namely
(b)dissociation for a period not to exceed thirty days.
Section 8(b) (2) of the Commissioner’s Directives provides:
If the inmate is found guilty of a serious or flagrant offence punishments shall consist of the following:
(2)dissociation for a period not to exceed thirty days with the normal diet or with the dissociation diet.
41. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgement or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied to as to (a) authorize or effect the arbitrary detention, imprisonment or exile of any person; (b) impose or authorize the imposition of cruel and unusual treatment or punishment;
43. See for example: D. Schultz, Sensory Restriction: Effects on Behaviour, 99 (1965); Scott and Gendeau, Psychiatric Implications of Sensory Deprivation in a Maximum Security Prison, 14 Can. Psychiatric Assn.; and Herron, The Pathology of Boredom, 196 Sci. Am. 52,56 (1957).
Where the parole granted to an inmate has been revoked, he shall be recommitted to the place of confinement from which he was allowed to go and remain at large at the time parole was granted to him, to serve the portion of his terms of imprisonment that remained unexpired at the time parole was granted to him, including any period of remission, including earned remission, then standing to his credit, less any time spent in custody as a result of a suspension of his parole.